ICC case vs President Duterte is also case against the Philippines

Tuesday February 13, 2018 ()

The critics of President Duterte are rejoicing that the case filed against him for alleged crimes against humanity in relation to his war on drugs, which is lodged at the International Criminal Court (ICC), has made initial progress. The ICC has announced that it is now conducting an examination of the complaint to determine whether it merits a formal investigation.

Those who push for his conviction are consumed by their desire to punish the President for the alleged extrajudicial killings, mostly of suspected drug criminals. They want to humiliate a President they detest. However, in the process they also want to humiliate the entire Republic.

Duterte vs ICC

At the outset, the case rests on the allegations that the war on drugs amounts to a systematic attack rising to the level of being a crime against humanity.

Article 17(1) of the Rome Statute clearly stipulates that a case is inadmissible when it is being investigated or prosecuted by the state which has jurisdiction over it, or more so when it has undergone investigation and the state decided not to prosecute. Article 17(2) of the Statute states that the ICC can only take jurisdiction when in its judgment the proceedings done by the state parties involved are being undertaken to shield the person accused from criminal responsibility, or if there is an unjustified delay, or if it is not conducted independently or impartially, and is done in manner that is inconsistent with an intent to bring the person concerned to justice.

Thus, in wishing for the case to prosper, the President's critics are practically asking the ICC to judge that the Philippine state has practically failed, and our institutions are no longer functioning to provide legal remedies to the alleged victims of the war on drugs.

This would diminish the fundamental right of the Philippine state to self-preservation by turning its police powers on those who violate the law on anti-illegal drugs into an attack that rises to the level of a crime against humanity. Article 7(2a) of the Rome Statute qualifies that an attack is that which is directed against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack. An ICC case prospering implies that the legitimate police power of the state to maintain peace and order and to enforce the anti-drugs law that was passed by Congress is now considered an attack.

A close perusal of the cases that is now lodged at the ICC would reveal their glaring mismatch with the situation in the Philippines.

The ICC is investigating state authorities in Burundi who, together with the armed Imbonerakure militia, have launched a widespread, systematic and indiscriminate attack against the civilian population. Atrocities related to an international armed conflict between Georgian and Russian armed forces which also involve South Ossetian forces are the focus of the ICC investigation in Georgia.

The ICC's investigation into the Central African Republic focuses on the alleged war crimes and crimes against humanity in the context of the ethnic and religious violence between the Muslim Seleka and Christian anti-Balaka groups. The case in Mali, on the other hand, is in the context of a civil war associated with the rebellion in its northern part, and a coup launched by a military junta. In Cote d'Ivoire, the ICC is looking into crimes that were committed in connection with the widespread and systematic violence that erupted after a Presidential election. A similar case of post-election violence in Kenya is also the object of ICC's investigation.

A case against the leaders of Libya was brought to the ICC on the basis of the widespread and systematic attacks against the civilian population. In Darfur in South Sudan, Sudanese government officials, Janjaweed militia leaders, and leaders of the resistance front are the ones accused of committing systematic attacks against the local population. In Uganda, the ICC is taking action against the violence committed by a rebel group, the Lord's Resistance Army, while in the Democratic Republic of Congo, it is the violence committed by government authorities that is the main concern of the ICC.

A perusal of the above reveals that what is now lodged with the ICC are cases where states have failed, where civilian authorities are no longer functioning as they should, and where attacks are made indiscriminately, if not systematically at their own citizens.

In all these cases, the ICC is looking at a litany of acts of inhumanity. These include murder, attempted murder, enslavement including sexual enslavement, rape including gang rape, imprisonment or severe deprivation of liberty, torture, enforced disappearance, persecution, attacks against civilian population, destruction of property and pillaging, forced displacement, use of child soldiers, mutilation, cruel treatment, extra-judicial executions, burning victims while alive, beheadings, hacking, genital mutilation and forced circumcision.

The Duterte government's war on drugs may have its shortcomings. But only a mind consumed by disdain and hatred would even consider this as rising to the level of the acts of inhumanity listed above. It is not a systematic act born from a policy of indiscriminately deploying political violence against innocent civilians. It is a legitimate act to which we are entitled in the context of the state's responsibility to enforce our laws and to keep our citizens safe from the influence of dangerous drugs and illegal substances.

We have laws that can be used to punish abuses, and legal remedies are available to those who fall victim to these abuses.

Our political institutions remain intact to serve as the enforcer of legal remedies. Our Congress retains its oversight functions, including that of conducting investigations in aid of legislation. Congress retains its powers to impeach the President. And our courts remain functional and independent. A noisy opposition and an adversarial press exist.

Convicting President Duterte would amount to a diminution of the Philippines' right to enforce its own law against illegal drugs as a way of exercising its right to self-preservation.

It will also be effectively slandering the Philippines by treating it as a failed state.

Hence, the case against the President at the ICC is also now practically a case against the Republic of the Philippines.


  • ICC case vs President Duterte is also case against the Philippines, Antonio P. Contreras, February 13, 2018, The Manila Times

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